People v. Horton

• Decision Date: 26 April 1961
• Docket Number: Cr. 7512
• Citation: 191 Cal.App.2d 592,13 Cal.Rptr. 33
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Claude M. HORTON, True Name: Claude J. Horton, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 33

13 Cal.Rptr. 33

191 Cal.App.2d 592

PEOPLE of the State of California, Plaintiff and Respondent, v. Claude M. HORTON, True Name: Claude J. Horton, Defendant and Appellant.

Cr. 7512.

District Court of Appeal, Second District, Division 3, California.

April 26, 1961.

Claude J. Horton, in pro. per.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

FORD, Justice.

This appeal is from a judgment ¹ of conviction of violation, on two separate occasions, of section 288 of the Penal Code. ²

The information filed in the superior court contained four counts. The offenses charged in the first and second counts were alleged to have been committed on or about July 25, 1959. While the date was inserted in count two at the end of the trial, no objection was made on behalf of the appellant. In count one the crime of rape in violation of section 261, subdivision 1, ³ of the Penal Code was alleged, while in the second count the charge was a violation of section 288 of the Penal Code. The offenses alleged in the third and fourth counts were stated to have been committed on or about February 27, 1960. In the third count, the crime of rape was charged without reference to any particular section or subsection of the Penal Code, but in both the first and the third counts the person with whom the act of sexual intercourse was alleged to have been accomplished was alleged to be 'a female person under the age of eighteen years, to wit, of the age of 12 years.' The fourth count embodied an accusation of a violation of section 288 of the Penal Code. It was alleged that the appellant had suffered five felony convictions for which he had served terms in prison.

Upon the trial, the appellant was found guilty as to counts two and four, but not guilty with respect to the charges of rape embodied in counts one and three. It was found that the appellant had suffered the prior convictions as alleged.

At both the preliminary examination and the trial, the appellant was represented by a deputy public defender. On this appeal, he requested that counsel be appointed to represent him. Such request was twice made, one request being attached to his opening brief and the other to his closing brief. We made an independent and thorough investigation of the record, as augmented on our own motion as hereinafter noted, for the purpose of determining whether it would be of advantage to the appellant or helpful to the appellate court to have counsel appointed. See People v Hyde, 51 Cal.2d 152, 154, 231 P.2d 42. As a result thereof we formed the judgment that such appointment would be of no value to either the appellant or the court and, accordingly, denied the requests.

A summary of the evidence before the trial court will be stated. The child as to whom the offenses were alleged to have been committed was the stepdaughter of the appellant. We will make reference to her as 'P.' She testified that she was 12 years old, having been born December 6, 1947. Toward the last of February, 1960, the appellant got into her bed. Her sister, the appellant's daughter, was also in the bed. The appellant placed himself on top of P. and 'put his private' between her legs. He tried to have intercourse with her but did not do so. Both P. and her sister kicked the appellant. P. further testified that toward the end of July in the previous year, 1959, the appellant got in bed with her. She was familiar with the word 'penis'; he did not place his penis inside of her but put it between her legs and engaged in movement. She did not 'quite remember' whether at any time on that occasion his penis was placed in her. There had been similar actions by her stepfather 'quite a few' times. She told her mother about 'these things happening.' On cross-examination, P. admitted that she had been in trouble because of posing in the nude for pictures with a man other than the appellant. When she told her mother about the actions of the appellant, it was in 1960, 'one or two times.'

The deputy district attorney and the deputy public defender agreed that 'if anything happened it happened July '59, and February, '60.'

P.'s sister, who was the appellant's daughter, was 8 years old. She was asked about 'one night about a month after Christmas' when she was sleeping with P. She testified that her father got on top of P. in the bed. After her father left the bed, he put his shorts on and went out of the room. Upon inquiry as to whether she remembered her father coming into the room where she and her sister were sleeping 'about last summer,' she answered that she did but she did not remember what happened. Her father got into bed with her and her sister more than once and each time he would get on top of her sister. The witness said that she, the witness, did not kick her father every time but that she did more than once. On cross-examination, she said that she told her mother at one time of the appellant's actions but her mother did not believe her.

On behalf of the appellant, his wife was called as a witness. She testified that during the Christmas vacation the younger daughter told her something about her father trying to get in bed with her and P. P., who was present, denied that the father had done so. P. never mentioned or complained about such matter to her mother. The witness never heard any confusion or noise arising out of her husband's presence in the bedroom with the children.

The appellant's stepson, who was fifteen years of age, testified in his behalf. Most of the time the boy was home but sometimes he would stay at another boy's home. He did not remember whether he was home most of the time during July, 1959. He never heard any commotion arising out of any attempt of his sisters to kick the appellant out of bed 'or anything like that.' He heard no screaming or 'hollering' from either one of the girls in February, 1960, or in July, 1959.

The appellant, as a witness on his own behalf, denied that the acts had occurred to which P. and his daughter had testified. In July, 1959, he was home until about the 27th, when he went to the hospital for an operation. On the day of his arrest, he had scolded P. for having been at a neighbor's house until 10:30 p. m. the night before. He told her that he would punish her when she returned from school. P. slammed the front door and went to school. Later that morning his wife received a call from the police department.

The appellant contends that, since at the time of the preliminary examination the committing magistrate found that there was sufficient evidence to require him to stand trial on two counts of statutory rape but not on the two counts relating to violations of section 288 of the Penal Code, the superior court was without jurisdiction to try him on either of the two counts of the information under which a violation of section 288 of the Penal Code was charged. In order that such contention could be fully examined, on this court's own motion the record was augmented by the inclusion of the transcript of the preliminary examination. Rule 12 of Rules on Appeal. It appears therefrom that P. related two principal incidents. From her testimony, it is a reasonable inference that one of such incidents occurred the last part of February or the first part of March, 1960, although she did testify that on February 27, 1960, he touched her 'private.' The other of such incidents, she said, occurred about a week or two before the appellant went to the hospital for an operation in July, 1959. The inference to be drawn from her testimony at the preliminary examination is that on each of the two principal occasions sexual intercourse was accomplished.

In the light of the evidence at the preliminary examination, the district attorney was warranted in including in the information a count charging rape and a count charging a violation of section 288 of the Penal Code with respect to each of such principal incidents. Under section 739 of the Penal Code the district attorney is authorized to charge by information the commission of any offense disclosed by the evidence taken at the preliminary examination even though such offense is not specified in the order of commitment, provided the offense charged is related to the transaction which was the basis for the commitment order. People v. Warren, 163 Cal.App.2d 136, 141, 328 P.2d 858; People v. Thomas, 163 Cal.App.2d 360, 362, 329 P.2d 332; People v. Dean, 158 Cal.App.2d 572, 575-576, 322 P.2d 929. In People v. Greer, 30 Cal.2d 589, at page 603, 184 P.2d 512, at page 520, the Supreme Court said: 'Section 288 now specifically includes acts constituting other crimes [provided for in part one of the Penal Code] and permits a greater penalty for those acts, if they are committed with the specified intent, upon a child under 14 years of age. The intent could normally be inferred from the very nature of the acts now under consideration. * * * Now statutory rape committed upon the body of a child under 14 years of age can be punished as a lewd and lascivious act.' And in 30 Cal.2d on page 604, 184 P.2d on page 521, in the Greer case, it is further stated: 'The prosecution may charge both crimes in the same information. The jury must be instructed, however, that, as in the case of necessarily included offenses, there can be only one verdict of guilty.' See also, People v. Costa, 141 Cal.App.2d 795, 797, 297 P.2d 667. It is clear from the record herein that as to each count as to which the appellant was convicted, the same transaction which was the basis for the commitment order provided the elements of the crime of which the appellant was found guilty. With respect to the appellant's contention, the statement of the court in People v. Dean, supra, 158 Cal.App.2d 572, at page 575, 322 P.2d 929 at page 930, is pertinent: 'Defendant asserts that the committing magistrate found the evidence presented at the preliminary examination insufficient to justify holding him...